Mary D. Fan, Governing Copyright in Cyberspace: The Penalty Default Problem with State-Centric Sovereignty, 43 Jurimetrics 315 (2003), https://digitalcommons.law.uw.edu/faculty-articles/652
Governing Copyright in Cyberspace: The Penalty Default Problem with State-Centric Sovereignty
World Intellectual Property Organization (WIPO) Copyright Treaty, penalty default, sovereignty, fair use, central dispute settlement body, Internet governance, multilateral cyberspace regulation
This Article examines the consequences for Internet governance of observing traditional, state-centric sovereignty in multilateral cyberspace regulation by analyzing the World Intellectual Property Organization's Copyright Treaty. Three layers of protection for state sovereignty in the Treaty interact to produce a possible nonenforcement default of its protections for digitally transmitted materials in contracting states that profit more from sidestepping than securing copyright protections. This nonenforcement default operates like a "penalty default" because it gives copyright-profiting states incentive to further bargain to avoid the default. This penalty default is not consciously set, but results from observing state sovereignty in regulating a supranational common resource against the backdrop of a cleavage in state interests over regulation. States with high economic interest in copyrighted material might respond with out-of-treaty bargaining to induce other states to enact regulations avoiding the default. Copyright-profiting states and certain private actors also will have increased incentive to erect electronic security fences and deploy other technologies that chill information flow. The resulting deliberation-deficient and undemocratic process for achieving regulation and nontransparent restrictions on information access may act as a hidden penalty default against piracy-profiting states and all concerned about information access and cyberspace governance, if not ameliorated by a multilaterally agreed mandatory fair use rule and establishment of a strong central dispute settlement body to enforce the treaty's terms.